Canadian Immigration Updates – July 2016

In a throwback to my articling days, I was asked by the Firm to prepare a summary of the recent developments in Canadian Immigration Law for July. Writing it, I felt this information may be useful to some of the frequent readers of this blog. Note also, I am working on a more significant policy piece (involving some heavy statistical analysis). It isn’t quite ready yet but it should be coming sometime this week. Between an upcoming IAD appearance, a Federal Court appearance scheduled for month end, and several ongoing applications to get out the door, I apologize once again for the delay in posting. I am aware that many individuals read this blog to keep up to speed with immigration and I certainly owe it to all of you to try and update more frequently.

JULY 2016

CANADIAN IMMIGRATION UPDATES

Program Delivery Updates

1. July 29, 2016 – New summary for instruction on how to process applications from interns (link: http://www.cic.gc.ca/english/resources/tools/temp/work/unique/intern.asp)

• Internship not defined in Immigration and Refugee Protections Act or Regulations – constitute work as per Section 2 IPRR
• Three guiding principles:
  1. If registered at foreign institution and wishing to come to Canada to take a position in research program = TFW;
  2. IRPA and IRPR requires individuals who seek authorization to work in Canada to obtain a work permit unless exempted per R.186 IRPR.

• Those who are not work-permit exempt under R.186 will need a positive LMIA unless LMIA exempt under R204 to R208 IRPR w/offer of employment/compliance fee;

1. Work permit required, LMIA-exempt (Cdn interest C10, post-doctoral fellow/awards C44, reciprocal employment general – C20, IEC – C21, Foreign medical (or dental residents/medical research fellows –C34, charitable or religious work – C50)
2. Work permit-exempt (work without permit – R186) – (Business visitors and health care students)
3. Reminder that employer responsible for info in offer of employment – and application can be refused if info wrong,

2. July 27, 2016 – Functional guidance on the Self-Employed

• As of date of this update, the IRCC link on this is down
• Reminder that IRCC does have instructions for self-employed (http://www.cic.gc.ca/english/immigrate/business/self-employed/apply-how.asp), the application package (http://www.cic.gc.ca/english/information/applications/fq-self-employed.asp), and the Selection factors grid (http://www.cic.gc.ca/english/immigrate/self_employed/selection_factors.asp)
• As well, OP 8 – Entrepreneur and Self-Employed at 11.1 (pg 31) has some guidance http://www.cic.gc.ca/english/resources/manuals/op/op08-eng.pdf

3. July 21, 2016 – Update to the instructions concerning peer reviews under the start-up business class (http://www.cic.gc.ca/english/resources/tools/updates/2016/2016-07-21.asp)

• Peer review requirement has been removed has requirement for start-up business class;
• Previously held up potential applicant/projects for several years – angel investor group with commitment certificate had to have National Angel Capital Organization (NACO) organize group to review potential applicants;
• Going forward, peer review only initiated where an officer has concerns about commitment Certificate and whether designated entity has performed due diligence to industry standards

4. July 13, 2016 – Update to the study permit instructions related to prerequisite programs

• Old practice was for Officers to issue study permits for the duration of both the pre-requisite program (often times ESL or FSL) as well as the program that the international student received conditional acceptance for;
• Now, Officers will issue a study permit for the duration of first program of study, after which they will be required to apply for a new study permit to demonstrate the requirements of first program met; and
• As this was a response to students who were working while studying for ESL as their study permits allowed them too – this will likely put an end to that practice.

5. July 12, 2016 – Update to instructions related to post-doctoral fellows awarded a Doctorate of Philosophy and award recipients [C44] (link: http://www.cic.gc.ca/english/resources/tools/updates/2016/2016-07-12.asp)

• IRCC issued these instructions to clarify requirement for foreign nationals who wish to use the C44 Labour-Market Impact Assessment Exemption;
• Instructions clarify for a Post-doctoral fellow, the requirement that the foreign national have completed or is expected to shortly have completed their PhD and gives universities some flexibility in setting out the methods and criteria for assessing candidates;
• Major change is in the academic awards – award criteria, where an applicant must show that the award was the result of a competitive assessment and review process. Onus is on applicant to provide details of award

Notices

6. Notice – Changes to the Pre-Removal Risk Assessment for Ethiopia (link: http://www.cic.gc.ca/English/department/media/notices/2016-07-27.asp)

• Individuals from Ethiopia exempted from one-year PRAA bar given worsening conditions in country;
• Reminder: About PRAA bar http://www.cic.gc.ca/english/refugees/reform-ppra.asp

Ministerial Instructions

7. Ministerial Instructions respecting invitations to apply for permanent residence under the Express Entry system #39 – July 27, 2016 (link: http://www.cic.gc.ca/english/department/mi/)

• Number selected for ITA: 755
• Minimum CRS score drawn: 488
• Note that score hasn’t dipped below 480 since April 20, 2016

Important Federal Court Decisions

• Ouedraogo v. Canada (Public Safety and Emergency Preparedness) 2016 FC 810 [http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/168655/index.do]
  • Federal Court upheld reasonableness of decision to issue an exclusion order to the applicant who overstayed but was within the 90 day restoration period;
  • As per paragraph 47, an application for restoration is not a shield against deportation and compliance enforcement.
• Ramenzanpour v. Canada (Citizenship and Immigration) 2016 FC 751
  • Federal Court (Justice Diner, notably) upheld decision of IRCC to refuse Ms. R’s Federal Skilled Worker Application
  • Three important takeaways:
    • (1) The officer erred in assessing the adaptability points, but this error would not have changed overall decision. Justice Diner held that even with adaptability points – Applicant would have fell short. “This court has repeatedly held that no purpose is served by sending an assessment back for redetermination if, after correcting the error, the application would still fail”
    • (2) An officer on file raised question of whether woman could cook in Iran. Decision ultimately made by different officer + Officers permitted to rely on “local” knowledge.
    • (3) Officers permitted to draw concerns about English letters – unusual in Iran.